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Novel and justiciable

Two lawsuits against the federal government have been allowed to proceed, marking a major moment for climate change litigation in Canada.

Climate litigation

Long-shot legal actions — “novel claims,” to use the phrase preferred by judges — sometimes pay off in ways no one expected.

Back in December, the Federal Court of Appeal issued a unanimous decision to revive two challenges of federal government climate policy — one brought by 15 young people from across Canada (the La Rose claim) and one brought by two groups that form part of the Wetʼsuwetʼen First Nation (the Misdzi Yikh claim). Both claims accused the federal government of violating the plaintiffs’ section 7 and 15 Charter rights by failing to address the threat of climate change.

The Federal Court rejected both claims without leave to amend on the grounds that they were not justiciable — that they were asking judges to rule on political questions beyond the legitimate authority of the courts.

The FCA disagreed, at least in part. It concurred with the Federal Court on the section 15 claim, arguing that the effect on young Canadians of lax federal climate policy did not violate the Charter’s guarantee of equal treatment under the law (“Intergenerational equity is not within the scope of section 15, as the law currently stands …”).

But it sided with the plaintiffs on the section 7 claim, concluding that there’s a justiciable argument for asserting a link between the “right to life, liberty and security of the person” and something the federal government promised to do: meet the emissions targets set out in the Paris Agreement, which Parliament ratified.

“The claims do not seek to tell Canada how to fulfill its commitments,” the FCA ruled. “In this regard, the Federal Court mischaracterized the claims when it held the claims were challenges to policy.”

So while the FCA did direct the plaintiffs to refine their arguments somewhat, their claims can still proceed. In part, the court’s decision reflects the fact that the claims had reached the motion-to-strike stage — and judges tend to be reluctant to toss out novel claims before they’ve had a proper airing.

“Motions to strike give appeal courts an opportunity to examine claims closely and decide whether there’s a cognizable issue in law there,” said Jon Silver, a senior associate at Torys who specializes in public law litigation.

“And I think the novelty of the claims played a large role in the court’s decision to let them go forward. There’s a striking section of the decision that talks about the threat of climate change, its effects on the livability of the environment. The court didn’t see itself as going out on a limb here.”

By deciding that the section 7 claim is justiciable (and, in the process, tossing out the argument that it’s impossible to prove a link between government action and damaging climate effects), the FCA opened the door wide to future claims accusing governments of violating core Charter rights by failing to get serious about climate change.

Even though the court directed that the claim be redrafted, Chris Tollefson of Tollefson Law in Victoria, co-counsel for the La Rose plaintiffs, sees the decision as an unqualified win.

“I think that what we’ve done here, with the appeal court ruling, is we’ve clarified an area of the law which was in a state of uncertainty,” he said. “It really wasn’t clear what justiciability meant. The court has said that questionsare not beyond the courts’ reach simply because they’re too complex or political.”

In doing so, the court also got out in front of a common argument against many Charter challenges of government policy — that such challenges assert a “positive right” to something rather than a “negative right” to be free from something.

“Positive rights under section 7 are very rare,” said Bridget Gilbride, a specialist in environmental law at Fasken. “There is still a very lively debate in legal circles about whether section 7 should be read to protect any positive rights at all.

“It can be argued that the threat posed by climate change is so great, it threatens the security of the person guaranteed by section 7 in the more usual, direct sense. So it could be interpreted as not a positive right.”

That’s basically what the FCA did. According to the wording of the appeal court decision, the Government of Canada argued that “positive obligations do not figure in any Charter jurisprudence to date and that the claims fail on that basis alone.”

The FCA, in response, suggested the claims entail aspects of both positive and negative rights. It also cited Gosselin v. Québec, “where the Court held that a positive rights claim could be advanced in ‘special circumstances.’”

“Climate change’s current and potential effects are widespread and grave,” the court continued. “They include loss of land and culture, food insecurity, injury and death. In the GGPPA References, the Supreme Court noted that climate change is an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored …

“If these do not constitute special circumstances, it is hard to conceive that any such circumstances could ever exist.”

The La Rose and Misdzi Yikh claims still have a long road ahead of them. Tollefson and his colleagues must refine their pleadings to take into account the FCA’s direction. “The Court of Appeal has indicated they have to start by focusing their claim on specific, individual government actions and their consequences,” said Silver.

And any claim that seeks to draw a bright line between a specific government law or policy and changes to the planet’s climate faces a daunting evidentiary burden.

“We feel confident in the scientific evidence we want to introduce,” said Tollefson. “And we have 15 young people who have compelling stories to tell the court.

“But today, we’ve got a decision that’s going to be cited for a long time to come. When novel claims are advanced, this decision is going to help the courts do their jobs.”